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People Ex Rel. Barrett v. Bd. of Commrs.

APRIL 18, 1973.

THE PEOPLE EX REL. EDWARD J. BARRETT, PETITIONER-APPELLEE,

v.

THE BOARD OF COMMISSIONERS OF COOK COUNTY ET AL., RESPONDENTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

On June 8, 1971, Edward J. Barrett, County Clerk of Cook County, filed a petition in the Circuit Court of Cook County for a writ of mandamus alleging his salary as County Clerk had been reduced by the County Board during his term of office, in violation of Article X, section 10, of the Illinois Constitution of 1870. He petitioned the court to direct the Board of Commissioners to pay him at the rate adopted by the Board prior to the beginning of his term of office.

On June 16, 1971, on motion of the petitioner, the court entered an order appointing the law firm of Kirkland & Ellis as a special State's Attorney to prosecute the lawsuit on behalf of Mr. Barrett, pursuant to chapter 14, paragraph 6, of the Illinois Revised Statutes, on the grounds the elected State's Attorney was officially committed to represent the County Board and had issued a legal opinion that the reduction of the County Clerk's salary was correct as a matter of law.

The issues on appeal are whether the trial court's appointment of a special State's Attorney to represent the petitioner was proper; whether the trial court had jurisdiction to entertain the petition for fees filed by the special State's Attorney more than 30 days after an adjudication on the merits; and whether the award of fees was reasonable and in conformity with the statute.

The trial court granted a motion by the petitioner for judgment on the pleadings and issued a writ of mandamus on August 5, 1971. On September 7, 1971, Kirkland & Ellis petitioned for an award of fees and expenses incurred in prosecuting the cause.

On September 21, 1971, the Board answered the petition for fees, alleging the appointment of the special State's Attorney was improper, and the court lacked jurisdiction to entertain the petition for fees because it was not filed within 30 days of the issuance of the writ.

The trial court heard arguments on the petition for fees and held that no issue involving the propriety of the court's appointment of the special State's Attorney could be raised because the Board had failed to make an objection at the appointment hearing, the court had jurisdiction to entertain the petition for fees, and $50 per hour was a reasonable fee for the services of the special State's Attorney.

On October 6, 1971, the court entered an order directing the county to pay $3,500 for 70 hours of professional services and $232.77 for expenses incurred in the prosecution of the suit to Kirkland & Ellis. The Board of Commissioners appeals from this order.

The Board's first contention is the trial court erred in appointing a special State's Attorney in this situation. It argues it was not established the State's Attorney had a duty to represent Mr. Barrett in the lawsuit because the suit was not one which could be brought in his official capacity; therefore, the question of conflict of interest never arose.

• 1-3 The record shows the Board failed to object to the appointment of a special State's Attorney either at the appointment hearing or during the mandamus proceeding itself. The law is well settled that failure to make a timely objection in the trial court constitutes a waiver of the right to review on appeal. (Department of Public Works and Buildings v. Todaro (1967), 90 Ill. App.2d 245.) Even assuming there was no waiver, the appointment was proper. The public office holder's right to compensation is not based on any personal or contract rights but attaches to the office. Kelly v. Chicago Park District (1951), 409 Ill. 91.

• 4 Secondly, the Board contends the trial court lacked jurisdiction to entertain the petition for fees and expenses, citing the general rule that the jurisdiction of the trial court extends to all matters put in issue by the pleadings, and such jurisdiction ceases 30 days after the entry of the final judgment or decree.

• 5 The rule is correctly stated, but its application favors the petitioner because the issue of fees was not determined by the pleadings. The trial court loses jurisdiction only over those elements of a suit that are finally determined and not over elements of the suit not related to the writ itself.

It is clear the duties of the special State's Attorney extended to whatever appeals the Board might file, and it was necessary to wait 30 days following the issuance of the writ to determine if there would be an appeal; therefore, the special State's Attorney could not determine its fees or expenses until the expiration of that period.

Finally, the Board contends the amount of fees awarded by the trial court was unreasonably high and not in accord with chapter 14, paragraph 6, of the Illinois Revised Statutes. The Board argues the court is not free to exercise discretion in awarding fees because the statute requires the special State's ...


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